Climate change and International Law: The Promise of an Advisory Opinion from the International Court of Justice

Peace Palace – The Hague

The University of Leiden and the Blue Ocean Law organization jointly organized a conference dealing with the potentialities of asking the ICJ for an advisory opinion (AO) on climate change. The speakers discussed the prospects for the advisory opinion campaign, and the potential impacts of new guidance on climate change from the ICJ.

The conference brought together international legal scholars and practitioners, including advocates involved in climate litigation and stakeholders in emerging legal initiatives to address climate change through adjudication.

The first conference day focused on landmark judgments at the domestic level, like Urgenda v the Netherlands and more recent decisions from international bodies, such as Sacchi v Argentina. A panel discussed the role of domestic and international courts and bodies in enforcing climate change law.

The first Panel proposed a focus on the Urgenda case as a “human rights turn” in climate litigation. This case is seen as a first opportunity offered to single individuals to force their states to respect their commitments and shows willingness of courts to deal with that kind of cases, using the tool of human rights to challenge climate action.

The first speaker, Ms. Fadjar SCHOUTEN-KORWA, International Human Rights Lawyer and member of Dutch Cooperating Organizations for West Papua, focused on how climate change affects indigenous people’s rights. Indigenous people represent 5% of the world ‘s population but 18% of the world’s biodiversity is part of their habitat or everyday life’s essential element. As biodiversity declines, indigenous people are the first facing the effects of climate change. Therefore, it seems urgent to integrate indigenous people’s traditional knowledge as a crucial expertise and culture. She mentions her own experience and expertise on the violation of West Papua indigenous’ fundamental rights. The Papuan people have been oppressed and marginalized. International trade and globalization have profoundly altered their life style and caused the over-exploitation of local resources. Also elsewhere indigenous rights are enshrined by national laws and policies, such as in Indonesia. Ms. Fadjar SCHOUTEN-KORWA stressed the everlasting colonial approach in economics and politics, tacking the example of renewable energy and the extraction of minerals which has an impact on local ecosystems. To fight such abuses, the protection of rights to life and to family life has been raised.

The second speaker, Freerk VERMEULEN, from NeutaDutilh, spoke about the Urgenda case. The Urgenda Climate Case against the Dutch Government was the first in the world in which citizens established that their government has a legal duty to prevent dangerous climate change. On 24 June 2015, the District Court of The Hague ruled the government must cut its greenhouse gas emissions by at least 25% by the end of 2020 (compared to 1990 levels). The ruling required the government to immediately take more effective action on climate change. The District Court’s decision was appealed by the State and upheld by the Court of Appeal on 9 October 2018. Following this judgment, the State appealed to the Supreme Court. The Supreme Court ruled in favor of Urgenda on 20 December 2019. The Climate Case, which was brought on behalf of 886 Dutch citizens, made climate change a major political and social issue in the Netherlands and transformed domestic climate change policy. To complete such improvement, the AO could give further legitimacy for judges to develop new arguments on climate litigation cases.

Ms. Jennifer ROBINSON, British lawyer and member of the Doughty Street Chamber, was the last speaker of this panel. She talked about her personal experience and linked it with how in her opinion an AO could be a major step into a better consideration of states’ environmental commitments. She gave the example of fracking in the UK, which is largely seen as a bridge into low carbon economy but actually this practice in itself contributes to increase climate change. Then, she focused on climate justice and indigenous people’s rights. Climate change is a threat to territorial integrity, and compromises people’s ability to live and enjoy their environment. Self-determination, which by the way is a fundamental human right, is also at threat. That is why an AO could be of very great help, by bringing so many countries of the world around climate issues and clearing up what the law hasn’t been able to do until now.

The second panel focused on bringing climate change before international courts and tribunals and was chaired by Mamadou HÉBIÉ from Leiden University.

The first speaker, Marcelo KOHEN from the Graduate Institute of International Development Studies and Secretary General of the Institution de Droit International, talked about the potential important impacts of asking an AO on climate change. Though it is not binding, an AO delivered by the ICJ has a very high weight when explaining and clarifying the content of rules. States rely then on the ascertainment of what the ICJ will declare. The speaker gave the example of the Legal Consequences of the Separation of the Chagos Archipelago Advisory Opinion of 1965. After the AO, the General Assembly (GA) of the UN explicitly recognized the UK had to withdraw its forces of the archipelago. We can therefore acknowledge that an AO has real and concrete impacts. The speaker concluded saying that if some issues are very controversial, the AO can help clarify an issue and give an official position and interpretation.

The second speaker, Jorge VINUALES from the University of Cambridge, focused on the process guiding to an AO. He stressed that “climate change” as a unique concept never enters the door as so because it is a very complex topic and has to be divided into precise units to ask the final question. In other words, framing the question is the most complex part of it. The first aspect that has to be considered is the juridical context and the history of AOs. There has been a number of attempt to bring climate change to the court asking for an AO. In March 2002, it unfortunately didn’t succeed, and the same occurred in 2012 when the AO was brought by Palau. It is also necessary to consider national and local cases on climate change to analyze global trends and shifts on that matter. Secondly, it is also a matter of process stricto sensu. There is a range of bodies and agencies that can request an AO, among which the GA of the UN that needs a simple majority to pass the AO to the ICJ. Finally, the third point concerns the parameters that can be later on dived in 7 sub-parameters. The AO would have to address diverse legal matters. An AO on climate change is based on massive and unprecedented scientific evidence that tell what is needed. The need for an AO has deep roots in the civil society and in the scientific sphere. The ICJ is the only institution that has not yet dealt with climate change and the time has come to do so.